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CASE NO.: Appeal (crl.)  399 of 2005

PETITIONER: Savitaben Somabhai Bhatiya

RESPONDENT: State of Gujarat and Ors.

DATE OF JUDGMENT: 10/03/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

(Arising out of SLP (Crl.) No. 4688 of 2004)

ARIJIT PASAYAT, J.

       Leave granted.

       A brief reference to the factual position would suffice because  essentially the dispute has to be adjudicated with reference to scope  and ambit of Section 125 of the Code of Criminal Procedure, 1973 (in  short the ’Code’).   

       The case at hand according to appellant is a classic example of  the inadequacies of law in protecting a woman  who unwittingly entered  into relationships with a married man.  

Factual position as projected by the appellant is as follows:-

Appellant claims that she was married to respondent No.2 some  time in 1994 according to the customary rites and rituals of their  caste. Though initially, the respondent No.2 treated her nicely,  thereafter he started ill-treating her and she was subjected to mental  and physical torture. On enquiry about the reason for such a sudden  change in his behaviour, the appellant came to know that respondent  No.2 had developed illicit relationship with a lady named Veenaben.  During the period the appellant stayed with the respondent, she became  pregnant and subsequently, a child was born. As respondent No.2  neglected the appellant and the child born, an application in terms of  Section 125 of the Code was filed claiming maintenance. The application  was filed before the learned Judicial Magistrate, First Class  (hereinafter referred to as the ’JMFC’) Himmatnagar. Respondent No.2  opposed the application by filing written statements taking the stand  that the appellant was not his legally married wife and the child  (respondent No.3) was not his son. He also denied having developed  illicit relationship with Veenaben.  He claimed that actually she was  married to him more than 22 years back and two children were born.  Their son Hament had died in the road accident in July 1990. In the  Claim Petition name of Veenaben was mentioned as the legal heir and in  the Voters List, Ration Card and Provident Fund records, Veenaben was  shown as the wife of respondent No.2. On 23.6.1998 learned JMFC allowed  the Claim Petition and granted maintenance. A criminal revision was  filed by respondent No.2 before learned Additional Sessions Judge,  Sabaakatha, Dist. Himmatnagar, who by his order dated 26.11.1998 set  aside the judgment dated 23.6.1998 as passed by the learned JMFC and

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remanded the matter to the trial Court for adjudication afresh after  affording an opportunity to respondent No.2 to cross examine the  witnesses of the appellant. By order dated 31.7.1999, learned JMFC  after considering the matter afresh awarded maintenance to both the  appellant and the child.  

       A Criminal Revision Application No.65/95 was filed by respondent  No.2 against the order dated 31.7.1999. By order dated 12.7.2001,  learned Additional District Judge, Sabarkatha dismissed the  application. The respondent No.2 filed a Special Criminal Application  No.568/2001 before the Gujarat High Court which by the impugned order  held that the appellant was not legally wedded wife of respondent No.2.  Reliance was placed on documents filed by respondent No.2 to conclude  that before the alleged date of marriage between the appellant and  respondent No.2, the latter was already married to Veenaben with  reference to the documents produced. However, maintenance granted to  the child (respondent No.3) was maintained and amount as awarded to him  i.e. Rs.350/- was enhanced to Rs.500/-. A direction was also given to  pay the enhanced amount from the date of order of the learned JMFC i.e.  31.7.1999.  

In support of the appeal, learned counsel for the appellant  submitted that the High Court has taken a too technical view in the  matter. Strict proof about a valid marriage is not the sine qua non for  getting maintenance under Section 125 of the Code. The documents  produced by respondent No.2 to substantiate the plea of earlier  marriage with Veenaben should not have been given primacy over the  clinching evidence adduced by the appellant to show that she was  unaware of the alleged marriage. Since respondent No.2 is guilty of  fraud and mis-representation, the equity should not weigh in his  favour. Law is intended to protect destitute and harassed woman and  rigid interpretation given to the word ’wife’ goes against the  legislative intent. In any event, nothing has been shown by respondent  No.2 to show that there is any customary bar for a second marriage.  Customs outweigh enacted law. That being the position, the order passed  by the learned JMFC should be restored. It was residually submitted  that when the amount was claimed as maintenance there was statutory  limitation prescribed at Rs.500/- which has been done away with by  omitting the words of limitation so far as the amount is concerned by  amendment in 2001 to the Cr.P.C. Therefore, taking into account the  high cost of living the quantum of maintenance should be enhanced for  the child.  

In response, learned counsel for respondent No.2 submitted that  law is fairly well settled regarding the definition of the expression  ’wife’ and there is no scope for giving an extended meaning to include  a woman who is not legally married.   

       There may be substance in the plea of learned counsel for the  appellant that law operates harshly against the woman who unwittingly  gets into relationship with a married man and Section 125 of the Code  does not give protection to such woman. This may be an inadequacy in  law, which only the legislature can undo. But as the position in law  stands presently there is no escape from the conclusion that the  expression ’wife’ as per Section 125 of the Code refers to only legally  married wife.  

       The provision is enacted for social justice and specially to  protect women and children as also old and infirm poor parents and  falls within the constitutional sweep of Article 15(3) reinforced by  Article 39 of the Constitution of India, 1950 (in short the  ’Constitution’). The provision gives effect to the natural and  fundamental duty of a man to maintain his wife, children and parents so  long as they are unable to maintain themselves. Its provisions are  applicable and enforceable whatever may be personal law by which the

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persons concerned are governed. (See Nanak Chand v. Chandra Kishore  (AIR 1970 SC 446). But the personal law of the parties is relevant for  deciding the validity of the marriage and therefore cannot be  altogether excluded from consideration. (See Smt. Yamunabai Anantrao  Adhav v. Anantrao Shivram Adhav and Anr.(AIR 1988 SC 644)

       There is no inconsistency between Section 125 of the Code and the  provisions in the Hindu Adoption and Maintenance Act, 1956 (in short  the ’Adoption Act’). The scope of the two laws is different.                           Section 125 of the Code at the point of time when the petition  for maintenance was filed reads as follows:

"125(1)- If any person having sufficient means  neglects or refuses to maintain-

       (a)     his wife, unable to maintain herself, or

       (b)     his legitimate or illegitimate minor  child, whether married or not, unable to maintain  itself, or

       (c)     his legitimate or illegitimate child (not  being a married daughter) who has attained majority,  where such child is, by reason of any physical or  mental abnormality or injury unable to maintain  itself, or

       (d)     his father or mother, unable to maintain  himself or herself,

       a Magistrate of the first class may, upon proof  of such neglect or refusal, order such person to make  a monthly allowance for the maintenance of his wife  or such child, father or mother at such monthly rate  not exceeding five hundred rupees in the whole, as  such Magistrate thinks fit, and to pay the same to  such person as the Magistrate may from to time  direct:

       Provided that the Magistrate may order the  father of a minor female child referred to in clause  (b) to make such allowance, until she attains her  majority, if the Magistrate is satisfied that the  husband of such minor female child, if married, is  not possessed of sufficient means.

       Explanation:- For the purposes of this Chapter-

       (a)     ’minor’ means a person who, under the  provisions of the Indian Majority Act, 1875 is deemed  not to have attained his majority;

       (b)     ’wife’ includes a woman who has been  divorced by, or has obtained a divorce from, her  husband and has not remarried."           

       By the Code of Criminal Procedure (Amendment) Act, 2001 (Central  Act 50 of 2001) the words ’not exceeding five hundred rupees in the  whole’ have been omitted w.e.f. 24.9.2001.  

       In Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr. (AIR  1999 SC 3348) it was held that the validity of the marriage for the  purpose of summary proceedings under Section 125 of the Code is to be

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determined on the basis of the evidence brought on record by the  parties. The standard of proof of marriage in such proceedings is not  as strict as is required in a trial of offence under Section 494 of  Indian Penal Code, 1860 (in short the ’IPC’). If the claimant in  proceedings under Section 125 succeeds in showing that she and the  respondent have lived together as husband and wife, the Court has to  presume that they are legally wedded spouses, and in such a situation  one who denies the marital status can rebut the presumption. Once it is  admitted that the marriage procedure was followed then it is not  necessary to further probe as to whether the said procedure was  complete as per the Hindu rites, in the proceedings under Section 125  of the Code. It is to be noted that when the respondent does not  dispute the paternity of the child and accepts the fact that marriage  ceremony was performed though not legally perfect, it would hardly lie  in his mouth to contend in proceedings under Section 125 of the Code  that there was no valid marriage as essential rites were not performed  at the time of said marriage. The provision under Section 125 cannot be  utilized for defeating the rights conferred by the legislature on the  destitute women, children or parents who are victims of social  environment.  The provision is a measure of social justice and as noted  above specially enacted to protect women and children and falls within  the constitutional sweep of Article 15(3) reinforced by Article 39 of  the Constitution.   

The sections of statutes calling for construction by courts are  not petrified print but vibrant words with social functions to fulfill.  The brooding presence of the constitutional empathy for the weaker  sections like women and children must inform interpretation if it has  to have social relevance. So viewed it is possible to be selective in  picking out that interpretation out of two alternatives which advances  the cause-the cause of the derelicts. (See Captain Ramesh Chander  Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807).  

       In Smt. Yamunabai’s case (supra), it was held that expression  ’wife’ used in Section 125 of the Code should be interpreted to mean  only a legally wedded wife. The word ’wife’ is not defined in the Code  except indicating in the Explanation to Section 125 its inclusive  character so as to cover a divorcee. A woman cannot be a divorcee  unless there was a marriage in the eye of law preceding that status.   The expression must therefore be given the meaning in which it is  understood in law applicable to the parties. The marriage of a woman in  accordance with the Hindu rites with a man having a living spouse is a  complete nullity in the eye of law and she is therefore not entitled to  the benefit of Section 125 of the Code or the Hindu Marriage Act, 1955  (in short the ’Marriage Act’). Marriage with person having living  spouse is null and void and not voidable. However, the attempt to  exclude altogether the personal law applicable to the parties from  consideration is improper. Section 125 of the Code has been enacted in  the interest of a wife and one who intends to take benefit under sub- section (1)(a) has to establish the necessary condition, namely, that  she is the wife of the person concerned. The issue can be decided only  by a reference to the law applicable to the parties.  It is only where  an applicant establishes such status or relationship with reference to  the personal law that an application for maintenance can be maintained.  Once the right under the provision in Section 125 of the Code is  established by proof of necessary conditions mentioned therein, it  cannot be defeated by further reference to the personal law. The issue  whether the Section is attracted or not cannot be answered except by  reference to the appropriate law governing the parties.   

But it does not further the case of the appellant in the instant  case. Even if it is accepted as stated by learned counsel for the  appellant that husband was treating her as his wife it is really  inconsequential. It is the intention of the legislature which is  relevant and not the attitude of the party.   

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In Smt. Yamunabai’s case (supra) plea similar to the one advanced  in the present case that the appellant was not informed about the  respondent’s earlier marriage when she married him was held to be of no  avail. The principle of estoppel cannot be pressed into service to  defeat the provision of Section 125 of the Code.  

It may be noted at this juncture that the legislature considered  it necessary to include within the scope of the provision an  illegitimate child but it has not done so with respect to woman not  lawfully married.  However, desirable it may be, as contended by  learned counsel for the appellant to take note of the plight of the  unfortunate woman, the legislative intent being clearly reflected in  Section 125 of the Code, there is no scope for enlarging its scope by  introducing any artificial definition to include woman not lawfully  married in the expression ’wife’.  

       As noted by this Court in Vimala (K.) v. Veeraswamy (K.) (1991  (2) SCC 375) when a plea of subsisting marriage is raised by the  respondent-husband it has to be satisfactorily proved by tendering  evidence to substantiate that he was already married.

       In the instant case the evidence on record has been found  sufficient by the Courts below by recording findings of fact that  earlier marriage of respondent was established.  

       In that view of the matter, the application so far as claim of  maintenance of the wife is concerned stands dismissed.  

That brings us to the other question relating to  adequacy of the  quantum of maintenance awarded to the child. It is not in dispute that  when the Claim Petition was filed, Rs.500/- was claimed as maintenance  as that was the maximum amount which could have been granted because of  the un-amended Section 125. But presently, there is no such limitation  in view of the amendment as referred to above.  

Learned counsel for respondent No.2 submitted that there was no  amendment made to the Claim Petition seeking enhancement. We find that  this is a too technical plea. As a matter of fact, Section 127 of the  Code permits increase in the quantum.  The application for maintenance  was filed on 1.9.1995. The order granting maintenance was passed by the  learned JMFC on 31.7.1999. The High Court enhanced the quantum awarded  to the child from Rs.350/- to Rs.500/- with effect from the order  passed by learned JMFC. No dispute has been raised regarding  enhancement and in fact there was a concession to the prayer for  enhancement before the High Court as recorded in the impugned judgment.  Considering the peculiar facts of the case, we feel that the amount of  maintenance to the child can be enhanced to Rs.850/- with effect from  today.  

Learned counsel for the respondent No.2 has submitted that as a  humanitarian gesture, the respondent No.2 agrees to pay a lump-sum  amount to settle the dispute. In case the respondent No.2 pays a sum of  rupees two lakhs only within a period of four months to the appellant,  the same shall be in full and final settlement of the claim of  respondent No.3 for maintenance. While fixing the quantum we have taken  note of the likely return as interest in case it is invested in fixed  deposit in a Nationalised Bank, and the likely increase in the quantum  of maintenance till respondent No.3 attains majority. Till deposit is  made, the quantum fixed by this order shall be paid. If the respondent  No.2 wants to make lump-sum payment in terms of this order, the amount  shall be paid by the Bank draft in the name of respondent No.3 with  appellant as mother guardian. The amount shall be kept in a fixed  deposit with monthly interest payment facility till respondent No.3  attains majority.

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 The appeal is accordingly disposed of.